Opinion
No. 08-50684 Conference Calendar.
June 16, 2009.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Henry Lawrence Chisolm, El Paso, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 3:07-CR-3216-ALL.
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
Raul Mosso-Guzman pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to 71 months of imprisonment and three years of supervised release. Mosso-Guzman argues that the district court plainly erred in applying the 16-level enhancement of U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his prior conviction under California Health and Safety Code § 11352. He argues that his sentence was enhanced in plain contravention of United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir. 2005), in which this court held that California Health and Safety Code § 11379(a), which criminalized offers to sell a controlled substance, was overbroad and encompassed activity that did not fall within the definition of "drug trafficking offense" under § 2L1.2.
Because Mosso-Guzman did not object to the 16-level enhancement in the district court, we review for plain error. See United States v. Ochoa-Cruz, 442 F.3d 865, 866-67 (5th Cir. 2006). To show plain error, the appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, ___ U.S. ___, ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If the appellant makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.
The district court applied the 16-level enhancement based on Mosso-Guzman's conviction under California Health and Safety Code § 11351.5, not § 11352. In United States v. Palacios-Quinonez, 431 F.3d 471, 474-77 (5th Cir. 2005), we held that the offense conduct constituting a violation of § 11351 is a "drug trafficking offense" within meaning of § 2L1.2(b)(1)(A)(i). The two statutes are identical in that both criminalize the possession for sale or the purchase for purposes of sale, except for the fact that § 11351 applies to controlled substances in general and § 11351.5 applies to cocaine base in particular. There is no basis upon which to distinguish the two statutes for purposes of applying the holding of Palacios-Quinonez to § 11351.5. The district court clearly applied the 16-level enhancement based on the conviction under § 11351.5. The district court did not plainly err in doing so.
AFFIRMED.